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United States v. City of Albuquerque

United States District Court, D. New Mexico

November 16, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
THE CITY OF ALBUQUERQUE, Defendant
v.
THE ALBUQUERQUE POLICE OFFICERS' ASSOCIATION, Intervenor.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the City's Motion Requesting Evidentiary Hearing Regarding Neutrality of Independent Monitor (Doc. 311), filed on October 31, 2017. For the reasons explained at the public hearing on this matter on November 16, 2017, and for those described in this Memorandum Opinion and Order, the Court will deny the Motion.

         I. The Monitor's Role and Responsibilities

         The City asks the Court to hold an evidentiary hearing to inquire into “certain statements and conduct by the Monitor and monitoring team members [that] raise questions of potential bias, . . . [and] to ensure that the monitoring process is fair, impartial, and unbiased.” (Doc. 311 at 1-2.) The City begins by comparing the Monitor to a special master and argues that the Court should examine his conduct pursuant to 28 U.S.C. § 455. (Id. at 3.) While the Court ultimately considers the City's allegations under this standard, the Court disagrees that the Monitor is a special master with quasi-judicial functions.

         A. The Monitor was appointed to assess and report.

         The Parties laid out the Monitor's roles, responsibilities, and expectations in a Joint Report filed on February 10, 2017. (Doc. 249-1.) The Parties agree that the Monitor's “primary duties are to assess the City's compliance with the CASA in an independent, objective, and reliable manner, and to report on the City's progress toward full compliance and provide recommendations regarding the necessary steps to achieve compliance.” (Doc. 249-1 at 1 (emphasis added).) The Monitor's duties derive from four documents: (1) the CASA (Doc. 247-1 (CASA)); (2) the February 19, 2015 Order of Appointment (Doc. 103); (3) the April 14, 2015 Order Accepting the Parties' Stipulation Regarding the Terms and Conditions of the Independent Monitor's Payment (Doc. 114); and (4) the Monitoring Methodology Dr. Ginger created pursuant to ¶ 300 of the CASA.[1]

         1. The CASA

         In the February 10, 2017 Joint Report, the Parties identified a variety of paragraphs that delineate the Monitor's “mandatory duties” (outlined in CASA ¶¶ 147, 148, 221, 222, 294, 295, 296, 297, 298, 300, 301, 302, 303, 304, 306, 307, 308, 309, 310, 311, 312, 314, 321, 324, 326, 330, 331, 334, 338), “discretionary duties” (outlined in CASA ¶¶ 299, 305, 320, 333), and a mix of “mandatory and discretionary duties” (outlined in CASA ¶ 313). In short, the Monitor's mandatory duties include: review, approve, and resolve objections to APD's new and revised policies/procedure/training/etc. (CASA ¶¶ 147-48, 221-22); assess and report on whether the requirements of the CASA have been implemented, conduct reviews, audits, and assessments, make recommendations on outcome measures (id. ¶¶ 294-98, 302); create methodology for assessment/review (id. ¶ 303); review serious use of force/misconduct complaint investigations, conduct comprehensive compliance and outcome assessments at certain dates (id. ¶¶ 304, 306- 09); communicate through monthly meetings, etc., meet with community stakeholders and hear community perspectives, maintain confidentiality, avoid conflicts of interest (id. ¶¶ 310-312, 314, 321, 324, 326); prepare annual budgets, inform parties of the need for technical assistance, confer on needed changes, modifications, and amendments to the CASA (id. ¶ 330-31, 334, 338).

         The discretionary duties include: may use data collected by APD to conduct outcome assessments (id. ¶ 299); may make recommendations on measures to ensure implementation of the CASA objectives (i.e., training, etc.) (id. ¶ 305); may conduct on-site visits and assessments without prior notice to City (id. ¶ 320); may request permission to hire/contract with others who are necessary to perform tasks (id. ¶ 333). Paragraph 313 consists of a mix of mandatory and discretionary duties and is related to when members of the monitoring team may testify with respect to the CASA.

         2. February 19, 2015 Order of Appointment (Doc. 103)

         The parties' filed a Joint Motion Requesting an Order Appointing Dr. James D. Ginger as Independent Monitor, which the Court granted on February 19, 2015. (Doc. 103.) The Court noted:

Ultimately, the Independent Monitor will be responsible for assessing and reporting whether the parties are fulfilling their obligations under the consent decree. . . . Dr. Ginger will ensure that the decree's implementation will produce a police force that provides constitutional, effective, and high-quality service to all Albuquerque residents. To accomplish these critical tasks, Dr. Ginger will have the duty and authority to conduct audits, gather data, analyze outcomes, make recommendations, and report his findings to the parties, the Court, and the public.

         (Doc. 103 at 1 (citing CASA ¶¶ 294-327) (emphasis added).)

         3. April 14, 2015 Order Accepting the Parties' Stipulation Regarding the Terms and Conditions of the Independent Monitor's Payment (Doc. 114)

         This Order, which includes the Parties' Stipulation Establishing the Independent Monitor's Office and the Payment of Monitoring Expenses, mentions that Section XIII of the CASA “outlines the Independent Monitor's specific duties, responsibilities, and authority, including conducting compliance reviews and audits; performing outcome assessments; reviewing use of force and misconduct investigations; preparing monitoring reports; providing technical assistance; and assisting the Parties with informal dispute resolution.” (Doc. 114 at 2.) It defines the Independent Monitor's Office to include “the Independent Monitor and all employees, agents, or independent contractors selected pursuant to Paragraph 333 of the Settlement Agreement.” (Id. at 3.) It further specifies that “[i]n addition to the duties, responsibilities, and authority set forth in the Settlement Agreement, all employees, agents, or contractors of the Independent Monitor's Office will comply with the Code of Conduct for Judicial Employees, as adopted by the Judicial Conference of the United States.” (Id. at 4 (emphasis added).)

         i. Code of Conduct for Judicial Employees

         The Code of Conduct for Judicial Employees[2] contains two rules relevant to the City's Motion, both in Canon 3, entitled “A Judicial Employee Should Adhere to Appropriate Standards in Performing the Duties of the Office.”

         First, Canon 3(C) provides in part:

A judicial employee should be patient, dignified, respectful, and courteous to all persons with whom the judicial employee deals in an official capacity, including the general public, and should require similar conduct of personnel subject to the judicial employee's direction and control. A judicial employee should diligently discharge the responsibilities of the office in a prompt, efficient, nondiscriminatory, fair, and professional manner.

         Code of Conduct for Judicial Employees, Canon 3(C).

         Second, Canon 3(F)(2), which relates to conflicts of ...


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